1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAKENZIE PAULY, Case No. 18-cv-05387-SI (TSH)
8 Plaintiff, ORDER RE: FIFTH DISCOVERY 9 v. DISPUTE, PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS 10 STANFORD HEALTH CARE, Re: Dkt. Nos. 104, 105, 113, 117, 118, 124, 11 Defendant. 135 12
13 14 I. INTRODUCTION 15 Pending before the Court are the parties’ fifth discovery dispute (ECF No. 104) and 16 Plaintiff’s Motion for Terminating Sanctions (ECF No. 105). 17 The Court finds these matters suitable for disposition without oral argument. See CIV. L.R. 18 7-1(b). Having considered the parties’ positions, relevant legal authority, and the record in this 19 case, the Court DENIES Plaintiff’s Motion for Terminating Sanctions. The Court ORDERS 20 Stanford to produce a color copy of the MTPCR and Stanford’s November 2008 and December 21 2008 policies and procedures relating to Plaintiff’s treatment by March 21, 2022. 22 II. BACKGROUND 23 Plaintiff alleges Defendant Stanford Health Care (“Stanford”) failed to properly provide 24 Plaintiff with medical care in November 2008 and December 2008. ECF No. 1. 25 On November 9, 2021, the Court ordered Stanford to produce its November 2008 and 26 December 2008 policies and procedures relating to Plaintiff’s treatment (“Policies”). ECF No. 92 27 at 2. 1 Stanford gave Plaintiff medical records that are missing information on Plaintiff’s chief complaint 2 in 2008. ECF No. 104. On January 4, 2022, Stanford filed a response and denied Plaintiff’s 3 claim. ECF No. 110. 4 On January 15, 2022, the Court ordered Stanford produce an audit trail to address whether 5 the chief complaint is missing from Plaintiff’s medical records. ECF No. 132 at 3:14-23. On 6 January 31, 2022, Stanford filed an audit trail. ECF No. 129. 7 On December 20, 2021, Plaintiff filed a Motion for Terminating Sanctions. ECF No. 105. 8 On January 3, 2022, Stanford filed an Opposition. ECF No. 109. On January 10, 2022, Plaintiff 9 filed a reply. ECF No. 112. 10 On February 28, 2022, Judge Illston referred this case to the undersigned to address the 11 parties’ fifth discovery dispute and Plaintiff’s Motion for Terminating Sanctions. ECF No. 137. 12 III. LEGAL STANDARD 13 “Courts are invested with inherent powers that are ‘governed . . . by the control necessarily 14 vested in courts to manage their own affairs so as to achieve the orderly and expeditious 15 disposition of cases.’” Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 16 (9th Cir. 1992) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Thus, “[a] federal 17 trial court has the inherent discretionary power to make appropriate evidentiary rulings in response 18 to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th 19 Cir. 1993). 20 The Court also has the authority to sanction a party “who fails to obey an order to provide 21 or permit discovery” under Federal Rule of Civil Procedure 37(b)(2)(A). “A terminating sanction, 22 whether default judgment against a defendant or dismissal of a plaintiff's action, is very severe . . . 23 [o]nly ‘willfulness, bad faith, and fault’ justify terminating sanctions.” Connecticut General Life 24 Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citing Jorgensen v. 25 Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)). 26 27 1 IV. DISCUSSION 2 A. Fifth Discovery Dispute 3 The parties’ fifth discovery dispute involves Plaintiff’s medical records. 1 ECF No. 104 at 4 2. Plaintiff alleges Stanford produced medical records that are missing Plaintiff’s chief 5 complaint for coming to the emergency department in 2008. ECF No. 104 at 2. 6 On January 15, 2022, Stanford filed an audit trail addressing the alleged missing 7 information. ECF No. 129. According to the audit, information regarding Plaintiff’s chief 8 complaint is contained in various sections of Plaintiff’s medical records. Id. at ¶¶ 7, 9. The audit 9 stated where the chief complaint information is located. Id. at ¶ 7. The Court reviewed Plaintiff’s 10 medical records and finds the information is in Stanford’s medical records. Plaintiff’s request for 11 additional discovery of her medical records is DENIED. 12 B. Motion for Terminating Sanctions 13 Plaintiff requests terminating sanctions for Stanford’s alleged spoliation of the Medical 14 Transport Program Call Record (“MTPCR”), failure to follow the Court’s order, failure to disclose 15 all witnesses in initial disclosures, and failure to admit to Plaintiff’s requests for admission.2 ECF 16 No. 105 at 5-15. The Court addresses each of Plaintiff’s allegations in turn. 17 Plaintiff alleges Stanford redacted the MTPCR. ECF No. 105 at 5-7. Stanford argues it 18 did not redact the MTPCR. ECF No. 109 at 6-7. “Spoliation is the destruction or significant 19 alteration of evidence, or the failure to preserve property for another’s use as evidence in pending 20 or reasonably foreseeable litigation.” Herson v. City of Richmond, No. 09-cv-2516-PJH (LB), 21 2011 WL 3516162, at *2 (N.D. Cal. Aug. 11, 2021) (citing United States v. Kitsap Physicians 22 1 Pauly filed two Administrative Motions to Seal her medical records. ECF Nos. 113, 135. The 23 Court GRANTS Pauly’s Administrative Motions to Seal. See California Spine and Neurosurgery Inst. v. United Healthcare Ins. Co., No. 19-cv-2417-LHK, 2021 WL 1146216, at *3 (N.D. Cal. 24 Feb. 12, 2021) (“Courts have repeatedly concluded that the need to keep personal health information confidential outweighs the presumption in favor of public access to court records.”); 25 A.C. v. City of Santa Clara, No. 13-cv-3276-HSG, 2015 WL 4076364, at *2 (N.D. Cal. July 2, 2015) (granting motion to seal medical records). 26
2 Pauly also seeks terminating sanctions for Stanford’s spoliation of medical records. ECF No. 27 105 at 7-13. Given the Court’s order addressing the parties’ fifth discovery dispute, the Court 1 Svs., 314 F.3d 995, 1001 (9th Cir. 2002)). 2 The Court finds Plaintiff has failed to establish spoliation. Plaintiff fails to identify what 3 evidence Stanford allegedly redacted. See Brosnan v. Tradeline Solutions, Inc., 681 F. Supp. 2d 4 1094, 1104 (N.D. Cal. 2010) (denying sanctions for spoilation where “Plaintiff has failed to 5 identify what evidence was destroyed and how it is relevant or necessary to his prosecution of this 6 case.”). Plaintiff argues her black and white copy of the MTPCR contains pixilations and are 7 evidence of Stanford redacting the MTPCR. ECF No. 105 at 5. However, Stanford has an 8 “original copy of the [MTPCR] [with] various shadings of color, which accounts for the pixilation 9 in [Plaintiff’s] black and white copy. Nothing has ever been redacted from the copy.” ECF 109-2, 10 Brown Decl. ¶ 3 (emphasis added). Plaintiff’s evidence is not based on the color copy of the 11 MTPCR. Stanford’s failure to produce the color copy appears to have led to confusion. This can 12 be remedied by ordering Stanford to produce the color copy, and sanctions are therefore 13 unwarranted.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAKENZIE PAULY, Case No. 18-cv-05387-SI (TSH)
8 Plaintiff, ORDER RE: FIFTH DISCOVERY 9 v. DISPUTE, PLAINTIFF'S MOTION FOR TERMINATING SANCTIONS 10 STANFORD HEALTH CARE, Re: Dkt. Nos. 104, 105, 113, 117, 118, 124, 11 Defendant. 135 12
13 14 I. INTRODUCTION 15 Pending before the Court are the parties’ fifth discovery dispute (ECF No. 104) and 16 Plaintiff’s Motion for Terminating Sanctions (ECF No. 105). 17 The Court finds these matters suitable for disposition without oral argument. See CIV. L.R. 18 7-1(b). Having considered the parties’ positions, relevant legal authority, and the record in this 19 case, the Court DENIES Plaintiff’s Motion for Terminating Sanctions. The Court ORDERS 20 Stanford to produce a color copy of the MTPCR and Stanford’s November 2008 and December 21 2008 policies and procedures relating to Plaintiff’s treatment by March 21, 2022. 22 II. BACKGROUND 23 Plaintiff alleges Defendant Stanford Health Care (“Stanford”) failed to properly provide 24 Plaintiff with medical care in November 2008 and December 2008. ECF No. 1. 25 On November 9, 2021, the Court ordered Stanford to produce its November 2008 and 26 December 2008 policies and procedures relating to Plaintiff’s treatment (“Policies”). ECF No. 92 27 at 2. 1 Stanford gave Plaintiff medical records that are missing information on Plaintiff’s chief complaint 2 in 2008. ECF No. 104. On January 4, 2022, Stanford filed a response and denied Plaintiff’s 3 claim. ECF No. 110. 4 On January 15, 2022, the Court ordered Stanford produce an audit trail to address whether 5 the chief complaint is missing from Plaintiff’s medical records. ECF No. 132 at 3:14-23. On 6 January 31, 2022, Stanford filed an audit trail. ECF No. 129. 7 On December 20, 2021, Plaintiff filed a Motion for Terminating Sanctions. ECF No. 105. 8 On January 3, 2022, Stanford filed an Opposition. ECF No. 109. On January 10, 2022, Plaintiff 9 filed a reply. ECF No. 112. 10 On February 28, 2022, Judge Illston referred this case to the undersigned to address the 11 parties’ fifth discovery dispute and Plaintiff’s Motion for Terminating Sanctions. ECF No. 137. 12 III. LEGAL STANDARD 13 “Courts are invested with inherent powers that are ‘governed . . . by the control necessarily 14 vested in courts to manage their own affairs so as to achieve the orderly and expeditious 15 disposition of cases.’” Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 16 (9th Cir. 1992) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Thus, “[a] federal 17 trial court has the inherent discretionary power to make appropriate evidentiary rulings in response 18 to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th 19 Cir. 1993). 20 The Court also has the authority to sanction a party “who fails to obey an order to provide 21 or permit discovery” under Federal Rule of Civil Procedure 37(b)(2)(A). “A terminating sanction, 22 whether default judgment against a defendant or dismissal of a plaintiff's action, is very severe . . . 23 [o]nly ‘willfulness, bad faith, and fault’ justify terminating sanctions.” Connecticut General Life 24 Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citing Jorgensen v. 25 Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)). 26 27 1 IV. DISCUSSION 2 A. Fifth Discovery Dispute 3 The parties’ fifth discovery dispute involves Plaintiff’s medical records. 1 ECF No. 104 at 4 2. Plaintiff alleges Stanford produced medical records that are missing Plaintiff’s chief 5 complaint for coming to the emergency department in 2008. ECF No. 104 at 2. 6 On January 15, 2022, Stanford filed an audit trail addressing the alleged missing 7 information. ECF No. 129. According to the audit, information regarding Plaintiff’s chief 8 complaint is contained in various sections of Plaintiff’s medical records. Id. at ¶¶ 7, 9. The audit 9 stated where the chief complaint information is located. Id. at ¶ 7. The Court reviewed Plaintiff’s 10 medical records and finds the information is in Stanford’s medical records. Plaintiff’s request for 11 additional discovery of her medical records is DENIED. 12 B. Motion for Terminating Sanctions 13 Plaintiff requests terminating sanctions for Stanford’s alleged spoliation of the Medical 14 Transport Program Call Record (“MTPCR”), failure to follow the Court’s order, failure to disclose 15 all witnesses in initial disclosures, and failure to admit to Plaintiff’s requests for admission.2 ECF 16 No. 105 at 5-15. The Court addresses each of Plaintiff’s allegations in turn. 17 Plaintiff alleges Stanford redacted the MTPCR. ECF No. 105 at 5-7. Stanford argues it 18 did not redact the MTPCR. ECF No. 109 at 6-7. “Spoliation is the destruction or significant 19 alteration of evidence, or the failure to preserve property for another’s use as evidence in pending 20 or reasonably foreseeable litigation.” Herson v. City of Richmond, No. 09-cv-2516-PJH (LB), 21 2011 WL 3516162, at *2 (N.D. Cal. Aug. 11, 2021) (citing United States v. Kitsap Physicians 22 1 Pauly filed two Administrative Motions to Seal her medical records. ECF Nos. 113, 135. The 23 Court GRANTS Pauly’s Administrative Motions to Seal. See California Spine and Neurosurgery Inst. v. United Healthcare Ins. Co., No. 19-cv-2417-LHK, 2021 WL 1146216, at *3 (N.D. Cal. 24 Feb. 12, 2021) (“Courts have repeatedly concluded that the need to keep personal health information confidential outweighs the presumption in favor of public access to court records.”); 25 A.C. v. City of Santa Clara, No. 13-cv-3276-HSG, 2015 WL 4076364, at *2 (N.D. Cal. July 2, 2015) (granting motion to seal medical records). 26
2 Pauly also seeks terminating sanctions for Stanford’s spoliation of medical records. ECF No. 27 105 at 7-13. Given the Court’s order addressing the parties’ fifth discovery dispute, the Court 1 Svs., 314 F.3d 995, 1001 (9th Cir. 2002)). 2 The Court finds Plaintiff has failed to establish spoliation. Plaintiff fails to identify what 3 evidence Stanford allegedly redacted. See Brosnan v. Tradeline Solutions, Inc., 681 F. Supp. 2d 4 1094, 1104 (N.D. Cal. 2010) (denying sanctions for spoilation where “Plaintiff has failed to 5 identify what evidence was destroyed and how it is relevant or necessary to his prosecution of this 6 case.”). Plaintiff argues her black and white copy of the MTPCR contains pixilations and are 7 evidence of Stanford redacting the MTPCR. ECF No. 105 at 5. However, Stanford has an 8 “original copy of the [MTPCR] [with] various shadings of color, which accounts for the pixilation 9 in [Plaintiff’s] black and white copy. Nothing has ever been redacted from the copy.” ECF 109-2, 10 Brown Decl. ¶ 3 (emphasis added). Plaintiff’s evidence is not based on the color copy of the 11 MTPCR. Stanford’s failure to produce the color copy appears to have led to confusion. This can 12 be remedied by ordering Stanford to produce the color copy, and sanctions are therefore 13 unwarranted. 14 Plaintiff’s second argument for terminating sanctions is that Stanford failed to obey the 15 Court’s Order requiring Stanford to produce its November 2008 and December 2008 policies and 16 procedures relating to Plaintiff’s treatment. ECF. No. 105 at 10-13. Stanford says that it did not 17 disobey the prior Court Order, as there was no deadline for the document production. This failure 18 to produce can be remedied by setting a deadline for that production. It is not obvious that this 19 delay in document production is prejudicial, as fact discovery closes May 6, 2022. ECF No. 66. 20 See Wanderer, 910 F.2d 652 at 656 (“Delay alone, without a focus on its effects, will not justify 21 dismissal or default.”). 22 Plaintiff’s third argument is that Stanford failed to disclose the names of all individuals 23 who may have discoverable evidence in Stanford’s initial disclosures. ECF No. 105 at 14. 24 However, initial disclosures do not require that. They require the disclosure of “each individual 25 likely to have discoverable information – along with the subjects of that information – that the 26 disclosing party may use to support its claims or defenses, unless the use would be solely for 27 impeachment,” FED. R. CIV. PRO. 26 (a)(1)(A)(i) (emphasis added). Accordingly, Plaintiff’s 1 demonstrate that Stanford’s initial disclosures are incomplete. In any event, if Stanford later 2 attempts to use a nondisclosed witness to support its defenses, it will have to reckon with Rule 37: 3 “If a party fails to provide information or identify a witness . . . the party is not allowed to use that 4 information or witness . . . unless the failure was substantially justified or is harmless.” FED. R. 5 CIV. PRO. 37(c)(1). 6 Finally, Plaintiff argues terminating sanctions are warranted because Stanford failed to 7 admit and denied the MTPCR “shows communication between Sutter and [Stanford] from 8 December 7, 2008 to December 10, 2008” and “states that SHC was, “. . . not sure if they want to 9 take pt.” ECF No. 105 at 15-16; Exhibit A, Requests for Admissions 8-9. 10 Under Federal Rule of Civil Procedure 36(a)(4), “if a matter is not admitted, the answer 11 must specifically deny it or state in detail why the answering party cannot truthfully admit or deny 12 it.” “If a party fails to admit . . . and if the requesting party later proves a document to be genuine 13 or the matter true, the requesting party may move that the party who failed to admit pay the 14 reasonable expenses, including attorney’s fees, incurred in making that proof.” FED. R. CIV. PRO. 15 37(c)(2) (emphasis added). Although Plaintiff provides the MTPCR, Plaintiff fails to prove the 16 matters in her requests for admissions to be true. The MTPCR appears to show general 17 communications, but Plaintiff does not explain who made the communications, who documented 18 communications, or how the source of the communication originated from either Sutter Hospital 19 or Stanford. Plaintiff may later choose to move for sanctions. See Optronic Technologies, Inc. v. 20 Ningbo Sunny Electronic Co., Ltd, No. 16-cv-6370-EJD (VKD), 2018 WL 5787302, at *2 (N.D. 21 Cal. Nov. 2, 2018) (“Rule 37(c)(2) is meant to compensate the requesting party for expenses 22 incurred in proving the matter at trial.”) However, at this stage, Plaintiff has not proven the truth 23 of her requests for admissions. See U.S. ex rel. Strom v. Scios, Inc., No. 05-cv-3004-CRB (JSC), 24 2011 WL 5444248, at *1 (N.D. Cal. Nov. 9, 2011) (“If a party contends that the response to the 25 request for admission does not comply with Rule 36(a), then the party may ‘move to determine the 26 sufficiency of an answer or objection.’”) 27 The Court next considers whether terminating sanctions and dismissal are appropriate. 1 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 2 docket; (3) the risk of prejudice to [party seeking sanctions]; (4) the public policy favoring 3 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Rio 4 Properties, Inc., v. Rio Intern. Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). This test applies to 5 terminating sanctions regardless of whether they are sought under Rule 37 or the Court’s inherent 6 power. Leon v. IDX Systems Corp., 464 F.3d 951, 958 n.4. (9th Cir. 2006). Generally, the first 7 and second factors weigh in favor of sanctions, while the fourth factor weighs against sanctions. 8 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). “Thus the key factors are prejudice and 9 availability of lesser sanctions.” Id. 10 The Court finds Plaintiff failed to demonstrate sufficient prejudice to justify terminating 11 sanctions. As discussed above, Plaintiff failed to show spoliation or disobedience of the Court’s 12 orders. Although Plaintiff may have experienced delay, “[d]elay alone, without a focus on its 13 effects, will not justify dismissal or default.” Id; see also Oracle America, Inc. v. Terix Computer 14 Co., No. 13-cv-3385-PSG, 2015 WL 2398993, at *5 (N.D. Cal. May 19, 2015) (“While the delay 15 undoubtedly was inconvenient, any prejudice was minimal.”). Notably, Stanford may still be 16 appropriately sanctioned at a later time if delay continues. See FED. R. CIV. PRO. 37(c)(1) (“If a 17 party fails to provide information or identify a witness . . . the party is not allowed to use that 18 information or witness . . . unless the failure was substantially justified or is harmless.”); FED. R. 19 CIV. PRO. 37(c)(2) (“If a party fails to admit what is requested . . . and if the requesting party later 20 proves . . . the matter true the requesting party may move that the party who failed to admit pay 21 the reasonable expenses, including attorney’s fees, incurred in making that proof.”). However, at 22 this stage, Plaintiff does not demonstrate a sufficient showing of prejudice for terminating 23 sanctions. See Conn. Gen. Life Ins., 482 F.3d at 1096 (“Only ‘willfulness, bad faith, and fault’ 24 justify terminating sanctions”) (internal citation omitted). 25 The Court finds the fifth factor of other available sanctions weighs against sanctions. The 26 “availability of lesser sanctions” factor includes “whether the court has considered lesser 27 sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility 1 comply with the Court’s orders and cooperate in the discovery process may result in sanctions. 2 See Loop Al Labs Inc. v. Gatti, No. 15-cv-798-HSG, 2017 WL 934599, at * 12 (N.D. Cal. Mar. 9, 3 2017) (“It is a party’s responsibility to respond to discovery, obey court orders, and avoid dilatory 4 |} tactics”). The Court ORDERS Stanford to produce a color copy of the MTPCR and Stanford’s 5 || November 2008 and December 2008 policies and procedures relating to Plaintiff's treatment by 6 || March 21, 2022. See Spurlock v. FBI, 69 F.3d 1010, 1016 (9th Cir. 1995) (“A district court 7 possesses inherent power over the administration of its business. It has inherent authority to 8 || regulate the conduct of attorneys who appear before it, to promulgate and enforce rules for the 9 management of litigation, to punish contempt, and to remand cases involving pendent claims.”). 10 Vv. CONCLUSION 11 For the reasons stated above, the Court DENIES Plaintiff's Motion for Terminating 12 || Sanctions.? The Court ORDERS Stanford to produce a color copy of the MTPCR and Stanford’s
13 || November 2008 and December 2008 policies and procedures relating to Plaintiff's treatment by
v 14 || March 21, 2022.
IT IS SO ORDERED. 16
= 17 Dated: March 14, 2022
Z 18 AY \ - Lj, — THOMAS S. HIXSON 19 United States Magistrate Judge 20 21 22 3 3 Stanford filed objections to Plaintiff's submission of evidence in support of her letter regarding discovery dispute and Motion for Terminate Sanctions. ECF Nos. 117, 118, 124. The Court does 24 || not rely on inadmissible evidence in its order and OVERRULES Stanford’s objections as moot. See Knighten vy. Omni Hotel, No. 12-cv-2296-CW, 2013 WL 4608192, at *9 (N.D. Cal. Aug. 28, 95 || 2013) “Omni objects to certain conclusory statements in Plaintiff's declaration. Because the Court does not rely on those statements here, Omni's evidentiary objections are overruled as 26 moot.”); McColm v. San Francisco Housing Authority, No. 06-cv-7378-CW, 2009 WL 2901596, at *6 (N.D. Cal. Sept. 4, 2009) (“The Court has reviewed these evidentiary objections and has not 07 relied on any inadmissible evidence. The Court will not discuss each objection individually. To the extent that the Court has relied on evidence objected to by either party, such evidence has been 2g || found admissible and the objections are overruled.”)